The Society for Human Resource Management reported in their 1996 Workplace Violence Survey that only 66% of companies were using background screening. Today, that number is up to more than 96% of HR professionals reporting using background checks. Pre-employment screening is becoming a routine part of the hiring process, due in large part to today’s concerns about security, workplace violence, and corporate scandals.

In order to stay within the laws of the Fair Credit Reporting Act, an employer has several obligations:

• You must get the applicant or employee’s written permission for the background check, if it will be performed by an outside company. This permission cannot be a part of the employment application or other documents; it must be on a separate form).
• You must also give specific notice if the background report will include medical information.
• You should always check your state and other local regulations for additional requirements, because the FCRA guidelines are the minimum required.
• It’s important to provide proper notice in the event of adverse action (such as deciding not to hire) based on information in a background screening report. The first step is to give a ‘pre-adverse action disclosure’ along with a copy of the background report and a ‘summary of rights.’ Even if the background report is not the only reason for not hiring, this notice still must be given. At the time of the adverse action itself, you are required to give a second notice. The second notice must identify the source of the report (such as the screening company), explain it was not the source of the report who made the adverse decision, and include a notice of the right to dispute the accuracy or completeness of the report.

Yes, although some HR-related laws are applied depending on the size of the company, the FCRA covers small business owners and large corporations. If you request information that can be defined as a consumer report, and is provided by a consumer reporting agency, the regulations of the FCRA apply to you regardless of the number of employees you have.

Many employers consider a comprehensive criminal background check as an important tool. Employers need to know that they are within the law when checking criminal backgrounds, and also to be sure the information is properly used in applicant screening activities.

Don’t Invite Discrimination Claims

Don’t leave yourself open to claims of discrimination by having a blanket policy against hiring anyone with a criminal conviction. Be sure you can show how it is a business necessity for an employee in a certain position to have a clean criminal record, or that requiring a clean criminal record has no adverse impact on any group that might apply for the job and who are protected by anti-discrimination laws.

As an employer, a criminal background check can be an important tool. You should also be aware that you have a choice (within the law) of what kind of information to receive and consider in your employee screening process.

Choices to Consider

Should you request a report that includes only felonies, or misdemeanors as well? What about only convictions, or should arrests be a factor? Again, within the law, it largely depends on your business. However, keep in mind that a long arrest record, even without convictions, may be an indicator of character. Additionally, the difference between a misdemeanor or a felony is only a matter of a dollar amount that is attached to the crime.

Professional Screening Assistance

A good employee screening company can advise you the kinds of reports you should consider based on your business.

Because of laws prohibiting age discrimination, most applicants expect not to be asked for date of birth. Effective background screening often requires that piece of information, however. You are allowed to request date of birth, and even race, as long as: you request it for all applicants for the same type of work, get that information on a ‘tear-off’ or separate page from the main application, and do not store that information in the permanent file (it must be destroyed after the background check).